Bethlehem Steel Co. v. Raymond Concrete Pile Co.

Boyd, C. J., delivered the opinion of the Court. The Raymond Concrete Pile. Company brought a suit for the use of the Ocean Accident and Guarantee Corporation and for the use of Mary Graffius, widow, and six infant children of Edward Graffius, deceased, against the Bethlehem Steel Company, for damages resulting from the death of Edward Graffius, alleged.to have been caused by the negligence of the defendant. The concrete company was employed by the steel company to construct a concrete trestle;, to replace a wooden trestle over which freight trains were operated, carrying material to and from the furnaces of the defendant, company located at Sparrows Point, Md. Edward Graffius was employed by the concrete company as a foreman of some laborers in connection with the concrete work, and was killed while- engaged in that work.

The widow made application to the State Industrial Accident Commission, on behalf of herself and her infant children, for compensation, and an order was passed by the Commission, requiring the concrete company and the Ocean Accident and Guarantee Corporation, insurer, to pay her thirty dollars a week for 141 2/3 weeks- for the use of herself and children. The appellee claims the right to sue, as it did, under the provision of article 101, section 58 of the Code. The appellant contends that there was no negligence proven on its part, that the deceased was guilty of contributory negligence, that under the circumstances a suit could not be brought by or for the equitable plaintiffs, as they had accepted compensation under the act, and that the accident- was caused by a train owned and operated by the Patapseo and Back River Railroad, and not by the appellant. ⁷³ This is an appeal from a judgment on a verdict in favor of the plaintiff for thirty thousand dollars, apportioned as follows: Mary Graffius, widow, $18,000, aud $2,000 to each of six children of Edward Graffius, set out in the verdict and judgment. Tlie only bill of exceptions in the record embraces the rulings on the prayers — the plaintiff having offered two, which were granted, and the defendant nine, all of which were refused except the last one, marked Mo. 7, which is the usual prayer instructing the jury as to contributory negligence.

As the defendant’s prayers Mo. 1 and Mo. 1% sought to take the case from the jury on the ground that there was no legally sufficient evidence, and Mo. 2 asked an instruction that, from the uncontradicted evidence, Edward Graffius was guilty of contributory negligence, we will first consider them — assuming for the purpose of the discussion that the steel company was responsible, if either it or the railroad company was. Tlie concrete company was engaged in constructing the concrete trestle referred to above, which was along or near a wooden trestle which was used for carrying fuel and ore to the furnaces of the defendant. That was about twelve feet high, the trestle being elevated so that the cars could he loaded and unloaded more conveniently. The concrete trestle was constructed «lose to the wooden trestle, and in the construction there was used what is called a concrete mixer, which was on or near the old trestle, as the wooden one is called: by some of the witnesses.

There was a conveyor which lifted the material from the ground level into the mixer. The mixer was on the old trestle, hut not on the tracks. Hiere was a train consisting of five cars and an engine which came on the old trestle. The train was moving backwards — the ears being in front of the engine, as the train was thus moving, and it had started to go to the ore pile to get coke for the furnaces, but stopped on the trestle.

Graffius was in charge of the gang working on the concrete trestle. ⁷⁴ He went on tlie old trestle, where the concrete mixer was, and was getting ready to pour some new bents in the new trestle and got on a trade on the old trestle. The witness Qoolc described his position as follows: “Graffius was in the middle of the track, about here (indicating). He removed his rule from his pocket and opened it up. He was facing this direction (indicating), by the way.

He opened the rule and squatted down between the rails and held his rule a-t arm’s length ahead of him, and was using it for a plumb bob or sight line, to line or sight something down here” (indicating). The train of five cars was standing on the trestle — Cook said perhaps a hundred feet from Graffius — hut. the witness Shodaiey said it was nearer Graffius. There was. an electric motor at a switch on the trestle below where the train stopped. The train started to move, and the electric motor began to blow its whistle in short blasts, which attracted the attention of Oook and some of his men, who attempted to warn Graffius, but apparently he did not hear them, by reason of the noise of tlie furnace.

The train was moving backwards and the drawbar coupling struck Graffius in the back of the neck and, to use the language of the witness, “Just howled him over and he went in under the pockets” of the car. Cook said the train had stood there possibly twenty-five or thirty minutes, and that Graffius had been on the track possibly eight or ten minutes before the train started. According to his evidence tire concrete mixer was on the other side of the old track, and they made the concrete there and then hauled it across the track on the new trestle, and Graffius was apparently lining the new forms. The train crew was short of a hrakeman that day, and the conductor had ridden down on the rear of the train.

He stopped the train on the trestle, because- he knew there was this concrete mixer near the track lie would pass on, where there were fifteen men working, of which Graffius was foreman. The conductor got off the rear end of the train and walked down the trestle to the switeh, which was about six ⁷⁵ car lengths below. As he did so he saw Graffius and told him that he would be going back and forth with the cars, transferring coke all day, and to keep the men off. He replied, “All right, Cap,” and the conductor went on down to the switch.

On his way back when he was about half way — three ear lengths from the rear of his train — he signaled it to move back. He said be could see the hind end of the train plainly, but did not see Graffius — that he did not know whether he could have seen him if he was kneeling on the ties, as there was a guard box there that covered a third rail used for the operation of the electric motor, and if he was behind that guard box it may have been possible that he could not haye seen him. He thought Graffius was struck about twenty feet from where the rear of the train had been standing. He said ho stopped the train at the point he did because he knew that there was a bunch of men working at that place, and he went to the switch so that he could see both sides of the train where there were men working.

He passed the place where the concrete mixer was, as he went to the switch, and there was no one on the track he was operating on, but there were men working on the trestle. He was asked: “Why didn’t you look to see if there was anybody behind that guard box before you .gave that man the signal to start the train?” and replied: “I do not know just why I did not walk up there and look.” He and other witnesses said that, as the train was backing, there was no one on the rear. The engineer and fireman were on the engine and could not see if anyone was on the track beyond tbe rear car, as they were high cars. There can he no doubt that there was ample evidence of negligence of the men in charge of the train — at least of the conductor — to go to the jury.

There were men working on the new trestle, close to the old one, under a contract made between the concrete company and the steel company, and it was known to the crew on the train that men were liable to he on the track or so close to it as to he in danger, and yet the train was run that morning without anyone on the rear of the train to givei notice of ⁷⁶ its approach, and Graffius was between the train and the conductor when the latter gave the signal for the train to- move. We are also of the opinion that the court could not properly have taken the case from the jury on the ground of contributory negligence of Graffius. The train had been standing there for some time, according to one witness for twenty-five or thirty minutes, and as Graffius talked with the conductor on his way down the track, he might well have taken for granted that some waning would be given before the train was started. The conductor had been riding on the rear of the train before he stopped it on the trestle, and although he told Graffius he ivas short of a brakeman, Graffius might well have thought that the train would not pass by where he was working until the conductor, or some one, would give warning, and that the conductor would not give a signal for the train to move until he had seen that there ivas no one on the track, as lie could very well have done if he had used proper care under all the circumstances.

It was not only not shown that Graffius had no right to> be where he was, but there is some evidence tending to show that he could not have done the work he was doing to advantage elsewhere. Without dwelling on this question longer, we are of opinion that under the facts and circumstances the court was clearly right in submitting to the jury the question of negligence and of contributory negligence of Graffius, and the prayers of the defendant marked Eos. 1, 1 y%, and 2, were properly rejected. The question whether the evidence did not affirmatively show that the steel company was not the responsible party and that the defendant’s prayers Eos. 2y2 and 6 should have been granted, has given us more difficulty. Tn passing Ave Avill say that the point, raised at the re-argument by the appellee, that inasmuch as there Avas no special exception to the plaintiff’s first prayer, that question is not open for revieAV, is in our judgment not well taken. ' Eor that contention the cases of Bentley, Shriver & Co. v. Edwards, 100 Md. 652 , and Baltimore Briar Pipe Co. v. Eisenhauer, an unreported case ⁷⁷ noted in 107 Md. 704 , and to be found in 66 Atl. 623 , are relied on.

AATthout stopping to discuss the question at length, wo will say that a marked distinction between this case and those is that in this case, while there appears no special exception to the plaintiff’s prayer, there was a general exception to granting it, and to refusing the defendant’s prayers, while in those cases, there was no exception to the plaintiff’s prayers. There is a statement in the Briar Pipe Company case which perhaps might he construed to hold that because there was no special exception to the plaintiff’s second prayer, those of the defendant could not he reviewed. That statement was wholly unnecessary, as there was no exception of any kind to that prayer, and if it can be construed to mean what is contended for, it must be understood' as not being in accordance with our settled practice and overruled to that extent. But in addition to what we have said, there can he no doubt about our right to review the plaintiff’s prayer, to determine whether it is correct under the facts in this case, and we will consider that in connection with the defendant’s prayers above mentioned.

AYe will ask the reporter to publish the two prayers of the plaintiff with the report of the case. The evidence in this case tends strongly to show that the railroad company, and not the steel company, was operating the train which caused this accident, and no reason is shown why the railroad company could not have been sued, or could not have been made to respond in damage®, if recovered in this ease. In order to hold the steel company liable, the corporate entity of the railroad company must he ignored, and the railroad company treated as a mere instrumentality or adjunct of the steel company. AYhether it can properly be so treated involves a nice and delicate question, and yet the only instruction given the jury, that in any way reflects oh the question, is that Graffins was killed “by a train of cars which was: being operated by persons in the employ of or subject to the control of the Bethlehem Steel Company.” That ⁷⁸ is not only too general, but it is very misleading under the facts of this case.

The point was expressly raised at the trial below and a good deal of evidence offered on the subject, but it was almost ignored in the prayers — there being nothing except what we have quoted above given to the jury on the subject. It was such a close question in the opinion of this Court that we, on our own motion, asked for a re-argument of that and .some other questions involved. We felt that justice to both parties required that action, and it seemed to us that under such circumstances as are in this case, the authorities to which we had been cited, and which we had found, at least left the question in grave doubt. Yet the jury was given practically nothing to guide them in passing on the question, and what was in the instruction on this subject was calculated to mislead them.

To tell the jury that all that was necessary to hold the steel company (instead of the railroad company) was to find that the train was being operated by persons in its employ, was not enough. The plaintiff claims that at least one of them was in th© employ of both companies, although we do not so understand the witness, hut even if he was, it did not follow that he was then, in operating the train, doing so for or in the employ of the steel company. And to tell the jury that there could be a recovery if they found those operating the train were subject to the control of the steel company might have easily led them to believe that there could he a recovery if the steel company had control of the railroad company as owner of the stock, and could, for that reason, he said to be in control of the train when the accident happened. That is going beyond what the authorities justify.

The P'atapsco and Back River Railroad Company was incorporated under article 23 of the Code of 1888, and amendments, in'December, 3936. The capital stock was five hundred thousand dollars, divided into ten thousand shares of fifty dollars each. All the incorporators, were, at the time, in the employ of the steel company, and the minutes of the annual meeting, held iu January, 1918, show that the steel ⁷⁹ company, by its proxy, nominated seven director's, who were duly elected. This accident occurred January l'ith, 1919, and the directors elected according to those minutes were still in office.

There were about sixty miles of railroad tracks at Sparrow’s Point. The most, if not all of them, were originally built by the Bethlehem Steel Company, or the Maryland Steel Company, which it succeeded, but when the railroad' company was incorporated, the structures on the right of way,, consisting of the tracks, ballast and ties, were turned over to it, and the right of way was leased by the steel company to the railroad company. The concrete trestle was being built by the steel company, as it owned the wooden trestle, which was treated as a part of the right of way, and which it leased to the railroad company. The terms of the lease and the precise agreement or arrangement between the two companies are not given in detail in the record, but the steel company does own all of the ground upon which the tracks were laid.

Xo question has been raised about the validity of the charter of the railroad company, and, as it was chartered in December, 1916, it was required to have the approval of the Public Service Commission of Maryland. The railroad is connected with the Pennsylvania Railroad Company and with the Western Maryland Railway Company at the south end of Bear Creek Bridge^ the dividing line between the property of the Pennsylvania, Railroad Company and that of the steel company, and joins the Baltimore and Ohio Railroad Company at Bear Creek Junction, at the dividing line between the property of the Baltimore and Ohio> Railroad Company and that of the steel company. It has various branches, throughout Sparrow’s Point and vicinity, although it is wholly ou the steel company’s property, which one of the witnesses described as extending; from the end nearest Baltimore to the. lower end called the breakwater, being possibly about two miles and a half, and the other way from the tin plate mill to the waterfront, being about a mile and a half. ⁸⁰ The railroad company “has tariffs issued and collects demurrage from its various customers under the sanction of the Interstate Commerce Commission,” and “those tariffs are all issued under the Public Service Commission of Maryland also.” It has twenty-five steam locomotives — marked P. and B. R. R. R. besides the rails, ballast, ties, etc., on its sixty miles of tracks. It has offices of its own.

Its cashier is also cashier of the steel company, but its superintendent, who has beeu such since its organization, is not employed by the steel company. It is a common carrier under its charter, and it does actually serve people other than the steel company. Mr. ETewlin, the cashier, testified that “the farmers in that vicinity in the summer time have their material loaded and the cars placed there at the Patapsco and Back River R. R. office for their benefits,” and it carries freight for sub-contractors that work in connection with the steel company work. It is liable to have to carry for others, if they want it done.

As said by Mr. Justice Day, in Tap Line cases, 234 U. S. 1 , on page 24: “It is insisted that these roads are not carriers because the most of their traffic is in their own logs and lumber, and that only a small part of the traffic canned is the property of others. But this conclusion loses sight of the principle that the extent to which a railroad is in fact used does not determine the fact whether it is or not a common carrier. It is the right of the public to use the road’s facilities and to demand services of it, rather than t'he extent of its business, which is the real criterion determinative of its character.” It is said in that ease, quoting from the syllabus for convenience, “Although a railroad may have originally been a mere plant facility, after it has been acquired by a common carrier duly organized under the law of the state and performing service as such and regulated and operated under competent authority, it is no longer a plant facility, but a public institution, even though the owner of the industry of which it formerly was an appendage is the principal shipper of freight thereover.” ⁸¹ The train that caused the accident complained of was apparently being run by the railroad company. Its superintendent had charge of the operations of the work of the road, and he was not connected with the steel company.

The conductor in charge of the train was employed and paid by the railroad company. He wore a badge of the Patapseo and Back River R. R. Co., as the other members of the train crew did. In his examination there was some question about the pin on the badge, which was marked, “B. S. Go.” hut he explained that lie had simply used the pin of the old badge which he had before the railroad was organized. The railroad company has a yardmastor’s office, superintendent’s office, and the clerks have an office.

The employees were paid their wages out of